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When can my son in the United States adjust his status?

My son is in the United States studying (with F-1 visa status) and I am in my home country. Upon my I-526 approval, can I apply to adjust my son's status, or must I get the immigration visa first through consular processing and then I can adjust his status?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    As the EB-5 investor you must first obtain conditional permanent residency before the son under an F-1 legal status can file an application for conditional permanent residency status while in the United States.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    The latter: once you enter the United States as a conditional permanent resident, your child can adjust, as long as the child is still within lawful status and has not aged out.

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    Charles Foster

    Immigration Attorney
    Answered on

    Once your son's I-526 investor petition is approved, he may file for adjustment of status if he is in valid status within the United States, but only if visa numbers are currently available under the quota and as reflected on the monthly Visa Bulletin issued by the U.S. Department of State. Remember, for individuals born in China, the Visa Bulletin currently reflects a 2+ year backlog under the quota, which in reality may be longer. This means that your son's I-526 EB-5 investor petition must have been filed prior to the date as reflected on the Visa Bulletin in order for him to file an application for adjustment of status. If a visa number is not available, your son will have to maintain his status in the United States as an F-1 student or otherwise until a visa number is available. This would be true even if your son returned home. He would not be able to apply for his immigrant visa through the appropriate American consulate unless a visa number was available under the quota.

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    John J Downey

    Immigration Attorney
    Answered on

    You need to adjust your status first.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you are not subject to the Chinese waiting line, your son can generally only apply to adjust after you have completed processing at the U.S. consulate. For this reason, it is usually easier for him to join you for the final interview at the consulate abroad. There may be an exception if USCIS opens chart B for adjustment filings in October.

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    Peter Zhang

    Immigration Attorney
    Answered on

    Your son may apply for adjustment of status concurrently with your immigrant visa process. However, if you are an investor from China, you will likely be subject to retrogression. This means you might not be eligible for a green card immediately upon your I-526 approval. This means you would have to wait until your priority date becomes current before you can begin consular processing and/or adjustment of status.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Fastest would be for him to come home and consular process when your interview is scheduled; otherwise he needs to wait for your permanent residency approval and your entry into the United States before he can even start his case.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    If your son is a derivative to your application, he must adjust with you.

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